Windsor v. The United States Of America

Filing
12

MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 proposed order, # 2 Certificate of Service)(Clement, Paul)

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
__________________________________________
)
EDITH SCHLAIN WINDSOR, in her
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capacity as Executor of the Estate of THEA
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CLARA SPYER,
)
)
Plaintiff,
)
)
vs.
)
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THE UNITED STATES OF AMERICA,
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Defendant.
)
__________________________________________)
Case No. 1:10-cv-8435 (BSJ) (JCF)
ECF Case
UNOPPOSED MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP
OF THE U.S. HOUSE OF REPRESENTATIVES
TO INTERVENE FOR A LIMITED PURPOSE
Pursuant to Rule 24(a), (b) of the Federal Rules of Civil Procedure and 28 U.S.C. §§
530D(b)(2), 2403, and for the reasons set forth in the accompanying Memorandum of Points and
Authorities, the Bipartisan Legal Advisory Group of the U.S. House of Representatives
(hereinafter “the House”) respectfully moves for leave to intervene as a party defendant in this
matter for the limited purpose of defending the constitutionality of Section III of the Defense of
Marriage Act, Pub. No. L. 104-199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7
(“DOMA”), from attack on the ground that it violates the equal protection component of the
Fifth Amendment Due Process Clause.1 The Department of Justice has stated that it will
1
The United States House of Representatives has articulated its institutional position in
litigation matters through a five-member bipartisan leadership group since at least the early
1980’s (although the formulation of the group’s name has changed somewhat over time). Since
1993, the House rules have formally acknowledged and referred to the Bipartisan Legal
Advisory Group, as such, in connection with its function of providing direction to the Office of
the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong.
“continue to represent the interests of the United States” in this litigation, Letter from Tony
West, Assistant Attorney General, to the Honorable Barbara S. Jones (Feb. 24, 2011), attached to
Notice to the Court by Defendant United States of America (Feb. 25, 2011), and we understand
that to mean that the Department will take full responsibility for litigating issues other than
Section III’s constitutionality under the equal protection component of the Due Process Clause.
Counsel for the House has conferred with Roberta A. Kaplan, Esq., counsel for plaintiff,
who has (i) advised that plaintiff does not oppose the relief sought by this motion, and (ii) agreed
that the House should not be required to file an Answer or other “pleading” in conjunction with
this motion. The Department of Justice has also informed us that the United States does not
oppose this motion to intervene for purposes of presenting arguments in support of the
constitutionality of Section 3 of DOMA, but will be filing a response to explain its position. In
addition, the United States agrees that the motion need not be accompanied by a pleading.
(1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group
seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it
represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group is
currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable
Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable
Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The
Democratic Leader and the Democratic Whip decline to support the filing of this motion.
2
A proposed Order is submitted herewith and oral argument is not requested.
Respectfully submitted,
Of Counsel:
Kerry W. Kircher, General Counsel
John D. Filamor, Sr. Assistant Counsel
Christine Davenport, Sr. Asst. Counsel
Katherine E. McCarron, Asst. Counsel
William Pittard, Assistant Counsel
Kirsten W. Konar, Assistant Counsel
OFFICE OF THE GENERAL COUNSEL
U.S. House of Representatives
219 Cannon House Office Bldg.
Washington, D.C. 20515
(202) 225-9700 (phone)
(202) 226-1360 (fax)
/s/ Paul D. Clement______________
Paul D. Clement, Esq.
Jeffrey S. Bucholtz, Esq.
Nicholas J. Nelson, Esq.
KING & SPALDING LLP2
1700 Pennsylvania Avenue, NW
Suite 200
Washington, D.C. 20006
(202) 737-0500 (phone)
(202) 626-3737 (fax)
Counsel for the Bipartisan Legal Advisory Group
of the U.S. House of Representatives
April 18, 2011
2
King & Spalding LLP has been “specially retained by the Office of General Counsel”
of the House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its
attorneys are, therefore, “entitled, for the purpose of performing [that] function[], to enter an
appearance in any proceeding before any court of the United States . . . without compliance with
any requirement for admission to practice before such court . . . .” 2 U.S.C. § 130f(a).
3

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